The Indiana State Capitol.

The Indiana State Capitol, host of the Indiana Supreme Court.

(Photo: Diego Delso)

Use State Courts to Defend Trans Rights

Three types of provisions unique to state constitutions—state-level Equal Rights Amendments, privacy rights protections, and healthcare freedom amendments—could all be wielded to strike down anti-LGBTQ+ legislation.

Republican-led states have passed a deluge of anti-trans legislation over the last few years, including bans on gender-affirming care, trans athletes participating in sports, and drag shows. In response, civil rights and LGBTQ+ advocacy groups have challenged the constitutionality of these new laws, primarily raising claims under the U.S. Constitution and federal statutes. Their claims have seen some early success, with Democratic- and Republican-appointed judges on federal district courts around the country handing down preliminary injunctions against the enforcement of these laws. State constitutions, however, may provide advocates with greater opportunities for pushing back against anti-trans legislation.

Given the uncertainty of how both circuit courts and the Supreme Court will come down on the constitutionality of these laws, the near-exclusive focus on federal constitutional claims is somewhat surprising. The most common argument raised by LGBTQ+ rights advocates in this litigation is that anti-trans legislation constitutes impermissible gender-based discrimination and thus runs afoul of the Equal Protection Clause. But this argument is not guaranteed to win. As the Sixth Circuit recently noted in reversing a district court’s injunction against Tennessee’s trans healthcare ban, the challenge to the law “seek[s] to extend the constitutional guarantees” under the Equal Protection Clause “to new territory.”

Without speculating on the Supreme Court’s resolution of this question, it’s worth considering how state constitutions provide advocates with a set of substantially stronger arguments than the U.S. Constitution, as well as how state judiciaries may prove more hospitable to these arguments. Three types of provisions unique to state constitutions—state-level Equal Rights Amendments, privacy rights protections, and healthcare freedom amendments—could all be wielded to strike down anti-LGBTQ+ legislation.

Not only is there an unequivocally stronger textual argument for LGBTQ+ rights under state constitutions, but in many states, the state judiciaries may be friendlier, too.

First, an Equal Rights Amendment is conspicuously missing from the U.S. Constitution, forcing litigants challenging laws on the basis of gender discrimination to make their claims under the 14th Amendment’s Equal Protection Clause. But many states around the country ratified their own versions of the Equal Rights Amendment, including a number of Republican-governed states. Most state courts have interpreted these amendments to require strict scrutiny for gender-based discrimination, making them friendlier to these kinds of claims. Moreover, the text of many Equal Rights Amendments—which prohibit discrimination “because of” or “on the basis of” “sex” or “gender”—could allow a state supreme court to easily import the Supreme Court’s holding in the 2020 case of Bostock v. Clayton County, which affirmed that employers can’t discriminate against individuals on the basis of sexual orientation.

One of the best examples of how such litigation might proceed is the Hawaii Supreme Court’s 1993 decision in Baehr v. Lewin. The case involved a challenge to the state’s ban on gay marriage, and the state supreme court agreed that the ban constituted a form of sex-based discrimination that was subject to strict scrutiny under the state Equal Rights Amendment. While Baehr was a victory for advocates, its legacy is striking—it kickstarted the national debate to ban gay marriage, inspiring the Defense of Marriage Act and state-level bans. Additionally, the court’s decision was soon mooted by the ratification of an amendment to the Hawaii Constitution in 1998 allowing the legislature to define marriage.

Second, many state constitutions recognize, either expressly or implicitly, a right to privacy. In the context of abortion rights, several state courts have relied on these protections to recognize rights to abortion under their state constitutions. The right to privacy has been central to recognizing some modicum of LGBTQ+ rights, too. In the decade after the U.S. Supreme Court rejected the argument in Bowers v. Hardwick in 1986 that Georgia’s anti-sodomy law violated the right to privacy, several state supreme courts embraced nearly identical arguments made under their state constitutions. The U.S. Supreme Court ultimately switched course, overruling Hardwick in Lawrence v. Texas in 2003, but the implied right to privacy that motivated the Court’s ruling in Lawrence was eroded in Dobbs, leaving the long-term viability of the Court’s privacy-based jurisprudence in question.

Third, a handful of states contain what are colloquially known as “healthcare freedom” amendments. These provisions were adopted in several conservative states in the years immediately following the passage of the Affordable Care Act, designed to protect individual rights to healthcare “from undue governmental infringement.” In the abortion rights context, litigants in Ohio and Wyoming have relied on these provisions to challenge their states’ abortion bans.

But the “freedom” of a person “to provide for their health care,” as recognized by the Alabama, Arizona, Ohio, and Oklahoma Constitutions, or the “right” of each person “to make his or her own health care decisions,” as recognized by the Wyoming Constitution, is clearly applicable in the context of state bans on gender-affirming care. Admittedly, the language of these provisions is keyed to Obamacare-specific contexts. They speak, for example, about protecting people from being required to “participate in any health care system” and to “pay directly” for their healthcare services. But these provisions can easily link up with other provisions in a state constitution, like an Equal Protection Clause or a right to privacy, to articulate a broad, textually grounded right to bodily autonomy.

Not only is there an unequivocally stronger textual argument for LGBTQ+ rights under state constitutions, but in many states, the state judiciaries may be friendlier, too. So far this year, otherwise conservative state supreme courts in Indiana, North Dakota, Oklahoma, and South Carolina have recognized some right to abortion under their state constitutions. Though two courts in recent years—in Idaho and Iowa—have declined to recognize such a right, both courts are exclusively composed of Republican appointees and rejected those claims by just one-vote majorities.

For the time being, the focus of LGBTQ+ rights advocates on federal constitutional claims may make sense—after all, they keep winning. But regardless of what the U.S. Supreme Court does when it considers one of these cases, litigation is likely to continue for the foreseeable future. And while state courts have been viewed as backups in the abortion context after Dobbs, they shouldn’t be seen that way when it comes to challenging legislation targeting transgender individuals and the broader LGBTQ+ community. If litigants pursue their claims in state court, state constitutions grant them the opportunity to develop robust, creative protections for LGBTQ+ rights at the state level, which can influence sister courts to adopt similar rationales and protect members of the LGBTQ+ community in all contexts.

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